This is an action under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552,et seq.,as amended, for the disclosure of agency records improperly withheld from plaintiff Ivan Greenberg by defendant Federal Bureau of Investigation.

JURISDICTION

1. This Court has both subject matter jurisdiction over this action and personaljurisdiction over the defendant pursuant to 5 U.S.C. § 552(a)(4)(B) and 28 U.S.C.

3. Plaintiff Dr. Ivan Greenberg (“Dr. Greenberg”) is an author currently working on a book of historical scholarship concerning the Federal Bureau of Investigation, the Watergate investigation and the role of Mark Felt, also known as “Deep Throat”.

4. Defendant Federal Bureau of Investigation (“FBI”) is an agency within themeaning of 5 U.S.C. § 552 (e), and is in possession and/or control of the recordsrequested by Dr. Greenberg which are the subject of this action.

COUNT ONE

(FAILURE TO DISCLOSE RECORDS – L. PATRICK GRAY)

5. By letter dated July 9, 2007, Dr .Greenberg faxed to the FBI’s Headquarters inWashington, D.C. (“FBI HQ”) a FOIA request that sought all records “pertaining toand/or captioned: L. Patrick Gray III, FBI Director”. Dr. Greenberg noted that the search for records should include “appropriate ‘main’ files and ‘see references,’ including but not limited to numbered and lettered sub files and control files.” He specifically requested that the Electronic Surveillance Index and the COINTELPRO Index be searched, as well as any other “similar technique for locating records of electronic surveillance”. He also clarified that he was seeking “copies of ‘see reference’ cards, abstracts, search slips, including search slips used to process this request, file covers, multiple copies of the same documents if they appear in a file, tapes of any electronic surveillance, photographs, and logs of physical surveillance”. Dr. Greenberg asked to be notified in advance if the cost of processing the request exceeded $300.

6. By letter dated August 14, 2007, Dr. Greenberg faxed a follow up letter seeking a status update on the request.

7. By letter dated December 7, 2007, FBI HQ informed Dr. Greenberg thatapproximately 30,000 pages had been located that were potentially responsive to hisrequest. The letter stated that duplication fees would amount to $2,990.00. The request was assigned Request No. 1088166-000.

8. By way of a telephone conversation in early January 2008, Dr. Greenbergdiscussed the scope of his FOIA request with FBI representative Peggy Jackson (“Ms.Jackson”). Dr. Greenberg and Ms. Jackson agreed to reduce the scope to the Watergate era. In addition, Dr. Greenberg notified Ms. Jackson of his preference for responsive records to be provided in electronic format on a CD-ROM. Ms. Jackson stated that she would look into the option. According to Ms. Jackson, since the records would eventually be made available to the public in the FBI Reading Room, which requires that records be produced in electronic format, it was possible that records responsive to Dr. Greenberg’s request could also be made available in electronic format.

9. By letter dated January 7, 2008, FBI HQ memorialized the telephone conversationDr. Greenberg had Ms. Jackson with respect to the scope of the FOIA request. The letter noted that, pursuant to Dr. Greenberg’s instructions, the scope of the requestwould be reduced to the Watergate era. Specifically, the letter explained that the FBI would search “main files that exist from 01/01/1972 to the present”. The letter indicated that the request was being re-numbered as Request No. 1104977.

10. By letter dated April 7, 2008, FBI HQ informed Dr. Greenberg that his requestwas still being processed.

11. By letter dated April 28, 2008, FBI HQ informed Dr. Greenberg thatapproximately 1,116 pages had been identified as potentially responsive to his request. The letter stated that duplication fees would amount to $101.60.

12. By letter dated June 9, 2008, FBI HQ informed Dr. Greenberg that his requestwas still being processed and that an analyst was confirming that “all records areresponsive to your request” and was applying “exemptions allowed under FOIPA”.

13. By letter dated September 11, 2008, FBI HQ informed Dr. Greenberg that it hadidentified 251 responsive pages and was releasing to him 250 responsive pages. Theletter noted that FOIA exemptions (b)(2), (b)(6), (b)(7)(c), (b)(7)(d) and (b)(7)(e) had been invoked to justify redactions made to the 250 responsive pages that had been released and the withholding of one responsive page in its entirety. The letter also noted that there were 717 potentially responsive pages remaining to be processed pending Dr. Greenberg’s agreement to pay for reproduction costs. By way of a telephone conversation on September 22, 2008 with FBI representative Charlie Miller, Dr. Greenberg agreed to pay the reproduction costs associated with the remaining 717 potentially responsive pages.

14. By letter dated September 23, 2008, Dr. Greenberg appealed the FBI’s interimresponse as the product of an inadequate search. The letter also stated that Dr. Greenberg was challenging the appropriateness of the redactions made pursuant to FOIA exemptions (b)(2), (b)(6), (b)(7)(c), (b)(7)(d) and (b)(7)(e).

15. By letter dated October 7, 2008, FBI HQ informed Dr. Greenberg that it receivedhis appeal on October 3, 2008, and that it had accepted the appeal. The appeal was assigned number 09-0011.

16. As twenty working days have elapsed without a determination by the FBIconcerning Dr. Greenberg’s appeal, he has therefore constructively exhausted all required administrative remedies.

17. Dr. Greenberg has a legal right under the FOIA to obtain the information heseeks, and there is no legal basis for the denial by the FBI of said right.

COUNT TWO

(REFUSAL TO PROVIDE RECORDS IN ELECTRONIC FORMAT –

L. PATRICK GRAY)

18. By letter dated July 9, 2007, Dr .Greenberg faxed to the FBI’s Headquarters inWashington, D.C. (“FBI HQ”) a FOIA request that sought all records “pertaining toand/or captioned: L. Patrick Gray III, FBI Director”. Dr. Greenberg noted that the search for records should include “appropriate ‘main’ files and ‘see references,’ including but not limited to numbered and lettered sub files and control files.” He specifically requested that the Electronic Surveillance Index and the COINTELPRO Index be searched, as well as any other “similar technique for locating records of electronic surveillance”. He also clarified that he was seeking “copies of ‘see reference’ cards, abstracts, search slips, including search slips used to process this request, file covers, multiple copies of the same documents if they appear in a file, tapes of any electronic surveillance, photographs, and logs of physical surveillance”. Dr. Greenberg asked to be notified in advance if the cost of processing the request exceeded $300.

19. By letter dated August 14, 2007, Dr. Greenberg faxed a follow up letter seeking a status update on the request.

20. By letter dated December 7, 2007, FBI HQ informed Dr. Greenberg thatapproximately 30,000 pages had been located that were potentially responsive to hisrequest. The letter stated that duplication fees would amount to $2,990.00. The request was assigned Request No. 1088166-000.

21. By way of a telephone conversation in early January 2008, Dr.Greenbergdiscussed the scope of his FOIA request with FBI representative Ms. Jackson. Dr. Greenberg and Ms. Jackson agreed to reduce the scope to the Watergate era. In addition, Dr. Greenberg notified Ms. Jackson of his preference for responsive records to be provided in electronic format on a CD-ROM. Ms. Jackson stated that she would look into the option. According to Ms. Jackson, since the records would eventually be made available to the public in the FBI Reading Room, which requires that records be produced in electronic format, it was possible that records responsive to Dr. Greenberg’s request could also be made available in electronic format.

22. By letter dated January 7, 2008, FBI HQ memorialized the telephone conversationDr. Greenberg had with Ms. Jackson with respect to the scope of the FOIA request. The letter noted that, pursuant to Dr. Greenberg’s instructions, the scope of the request would be reduced to the Watergate era. Specifically, the letter explained that the FBI would search “main files that exist from 01/01/1972 to the present”. The letter indicated that the request was being re-numbered as Request No. 1104977.

23. By way of a telephone conversation shortly after receipt of the FBI’s letter dated January 7, 2008, Dr. Greenberg spoke with another FBI representative, Mr. Stevens, regarding Dr. Greenberg’s request for responsive records to be made available in electronic format. Mr. Stevens stated that Ms. Jackson had agreed to provide responsive records to Dr. Greenberg in electronic format.

24. By way of a telephone conversation on April 3, 2008, Dr. Greenberg spoke with athird FBI representative, Tonya Robinson (“Ms. Robinson”). Ms. Robinson informed Dr.Greenberg that Ms. Jackson had chosen to reverse her original decision regarding making available responsive records in electronic format and instead would only permit production of responsive records in paper format. Dr. Greenberg requested that the substance of this decision be memorialized into a written letter and sent to him. No such correspondence was ever provided to Dr. Greenberg.

25. By way of a telephone conversation that same day, Dr. Greenberg spoke with theDepartment of Justice’s Office of Information and Privacy (“OIP”) regarding his ability to administratively appeal Ms. Jackson’s decision to reverse her original approval of production of responsive records in electronic format. Dr. Greenberg was informed that, since his original FOIA request letter had not specifically sought production in electronic format, Ms. Jackson’s initial approval did not constitute a binding administrative decision. Therefore, Dr. Greenberg did not retain the right to administratively appeal her subsequent reversal.

26. By letter dated April 7, 2008, FBI HQ informed Dr. Greenberg that his requestwas still being processed.

27. By letter dated April 28, 2008, FBI HQ informed Dr. Greenberg thatapproximately 1,116 pages had been identified as potentially responsive to his request. The letter stated that duplication fees would amount to $101.60.

28. By letter dated June 9, 2008, FBI HQ informed Dr. Greenberg that his requestwas still being processed and that an analyst was confirming that “all records areresponsive to your request” and was applying “exemptions allowed under FOIPA”.

29. By letter dated September 11, 2008, FBI HQ informed Dr. Greenberg that it hadidentified 251 responsive pages and was releasing to him 250 responsive pages. Theletter noted that FOIA exemptions (b)(2), (b)(6), (b)(7)(c), (b)(7)(d) and (b)(7)(e) had been invoked to justify redactions made to the 250 responsive pages that had been released and the withholding of one responsive page in its entirety. The letter also noted that there were 717 potentially responsive pages remaining to be processed pending Dr. Greenberg’s agreement to pay for reproduction costs. By way of a telephone conversation on September 22, 2008 with FBI representative Charlie Miller, Dr. Greenberg agreed to pay the reproduction costs associated with the remaining 717 potentially responsive pages.

30. By letter dated September 23, 2008, Dr. Greenberg appealed the FBI’s interimresponse as the product of an inadequate search. The letter also stated that Dr. Greenberg was challenging the appropriateness of the redactions made pursuant to FOIA exemptions (b)(2), (b)(6), (b)(7)(c), (b)(7)(d) and (b)(7)(e).

31. By letter dated October 7, 2008, FBI HQ informed Dr. Greenberg that it receivedhis appeal on October 3, 2008, and that it had accepted the appeal. The appeal was assigned number 09-0011.

32. As twenty working days have elapsed without a determination by the FBIconcerning Dr. Greenberg’s request, he has therefore constructively exhausted allrequired administrative remedies.

33. Dr. Greenberg has a legal right under the FOIA to obtain responsive records inelectronic format so long as the records are easily reproducible in that format and there is no legal basis for the denial by the FBI of said right.

COUNT THREE

(FAILURE TO DISCLOSE RECORDS – CLARENCE M. KELLEY)

34. By letter dated July 9, 2007, Dr .Greenberg faxed to the FBI’s Headquarters inWashington, D.C. (“FBI HQ”) a FOIA request that sought all records “pertaining toand/or captioned: Clarence M. Kelley, FBI Director”. Dr. Greenberg noted that the search for records should include “appropriate ‘main’ files and ‘see references,’ including but not limited to numbered and lettered sub files and control files.” He specifically requested that the Electronic Surveillance Index and the COINTELPRO Index be searched, as well as any other “similar technique for locating records of electronic surveillance”. He also clarified that he was seeking “copies of ‘see reference’ cards, abstracts, search slips, including search slips used to process this request, file covers, multiple copies of the same documents if they appear in a file, tapes of any electronic surveillance, photographs, and logs of physical surveillance”. Dr. Greenberg asked to be notified in advance if the cost of processing the request exceeded $300.

35. By letter dated August 14, 2007, Dr. Greenberg faxed a follow up letter seeking a status update on the request.

36. By letter dated December 7, 2007, FBI HQ informed Dr. Greenberg that approximately 30,000 pages had been located that were potentially responsive to hisrequest. The letter stated that duplication fees would amount to $2,990.00. The request was assigned Request No. 1088203-000.

37. By way of a telephone conversation in early January 2008, Dr.Greenbergdiscussed the scope of his FOIA request with FBI representative Ms. Jackson. Dr.Greenberg and Ms. Jackson agreed to reduce the scope to the Watergate era. In addition, Dr. Greenberg notified Ms. Jackson of his preference for responsive records to be provided in electronic format on a CD-ROM. Ms. Jackson stated that she would look into the option. According to Ms. Jackson, since the records would eventually be made available to the public in the FBI Reading Room, which requires that records be produced in electronic format, it was possible that records responsive to Dr. Greenberg’s request could also be made available in electronic format.

38. By letter dated January 7, 2008, FBI HQ memorialized the telephone conversationDr. Greenberg had with Ms. Jackson with respect to the scope of the FOIA request. The letter noted that, pursuant to Dr. Greenberg’s instructions, the scope of the request would be reduced to the Watergate era. Specifically, the letter explained that the FBI would search “main files that exist from 01/01/1972 to the present”. The letter indicated that the request was being re-numbered as Request No. 1104839.

39. By way of a telephone conversation on April 3, 2008, Dr. Greenberg spoke withan FBI representative, Ms. Robinson. Ms. Robinson informed Dr. Greenberg that thescope of responsive records was estimated to be approximately 58,000 pages.

40. By letter dated April 3, 2008, FBI HQ informed Dr. Greenberg that his requestwas still being processed.

41. By letter dated June 22, 2008, FBI HQ informed Dr. Greenberg that it hadidentified and was releasing to him 493 responsive pages. The letter also noted that FOIA exemptions (b)(2), (b)(6) and (b)(7)(c) had been invoked to justify redactions made to the responsive pages.

42. By letter dated August 20, 2008, Dr. Greenberg appealed the FBI’s response asthe product of an inadequate search. The letter also stated that Dr. Greenberg waschallenging the appropriateness of the redactions made pursuant to FOIA exemptions(b)(2), (b)(6) and (b)(7)(c).

43. By letter dated September 10, 2008, FBI HQ informed Dr. Greenberg that itreceived his appeal on August 27, 2008, and that it had accepted the appeal. The appeal was assigned number 08-2610.

44. By letter dated September 22, 2008, FBI HQ informed Dr. Greenberg that it wasdenying his appeal and affirming the FBI’s search and redactions. The FBI noted that Dr. Greenberg retained the right to seek judicial review by way of 5 U.S.C. § 552(a)(4)(B).

45. Dr. Greenberg has a legal right under the FOIA to obtain the information heseeks, and there is no legal basis for the denial by the FBI of said right.

COUNT FOUR

(REFUSAL TO PROVIDE RECORDS IN ELECTRONIC FORMAT –CLARENCE M. KELLEY)

46. By letter dated July 9, 2007, Dr .Greenberg faxed to the FBI’s Headquarters inWashington, D.C. (“FBI HQ”) a FOIA request that sought all records “pertaining toand/or captioned: Clarence M. Kelley, FBI Director”. Dr. Greenberg noted that the search for records should include “appropriate ‘main’ files and ‘see references,’ including but not limited to numbered and lettered sub files and control files.” He specifically requested that the Electronic Surveillance Index and the COINTELPRO Index be searched, as well as any other “similar technique for locating records of electronic surveillance”. He also clarified that he was seeking “copies of ‘see reference’ cards, abstracts, search slips, including search slips used to process this request, file covers, multiple copies of the same documents if they appear in a file, tapes of any electronic surveillance, photographs, and logs of physical surveillance”. Dr. Greenberg asked to be notified in advance if the cost of processing the request exceeded $300.

47. By letter dated August 14, 2007, Dr. Greenberg faxed a follow up letter seeking a status update on the request.

48. By letter dated December 7, 2007, FBI HQ informed Dr. Greenberg thatapproximately 30,000 pages had been located that were potentially responsive to hisrequest. The letter stated that duplication fees would amount to $2,990.00. The request was assigned Request No. 1088203-000.

49. By way of a telephone conversation in early January 2008, Dr.Greenbergdiscussed the scope of his FOIA request with FBI representative Ms. Jackson. Dr.Greenberg and Ms. Jackson agreed to reduce the scope to the Watergate era. In addition, Dr. Greenberg notified Ms. Jackson of his preference for responsive records to be provided in electronic format on a CD-ROM. Ms. Jackson stated that she would look into the option. According to Ms. Jackson, since the records would eventually be made available to the public in the FBI Reading Room, which requires that records be produced in electronic format, it was possible that records responsive to Dr. Greenberg’s request could also be made available in electronic format.

50. By letter dated January 7, 2008, FBI HQ memorialized the telephone conversationDr. Greenberg had with Ms. Jackson with respect to the scope of the FOIA request. The letter noted that, pursuant to Dr. Greenberg’s instructions, the scope of the request would be reduced to the Watergate era. Specifically, the letter explained that the FBI would search “main files that exist from 01/01/1972 to the present”. The letter indicated that the request was being re-numbered as Request No. 1104977.

51. By way of a telephone conversation shortly after receipt of the FBI’s letter dated January 7, 2008, Dr. Greenberg spoke with another FBI representative, Mr. Stevens, regarding Dr. Greenberg’s request for responsive records to be made available in electronic format. Mr. Stevens stated that Ms. Jackson had agreed to provide responsive records to Dr. Greenberg in electronic format.

52. By way of a telephone conversation on April 3, 2008, Dr. Greenberg spoke with athird FBI representative, Ms. Robinson. Ms. Robinson informed Dr. Greenberg that Ms.Jackson had chosen to reverse her original decision regarding making availableresponsive records in electronic format and instead would only permit production ofresponsive records in paper format. Dr. Greenberg requested that the substance of this decision be memorialized into a written letter and sent to him. No such correspondence was ever provided to Dr. Greenberg.

53. By way of a telephone conversation that same day, Dr. Greenberg spoke with theDepartment of Justice’s Office of Information and Privacy (“OIP”) regarding his ability to administratively appeal Ms. Jackson’s decision to reverse her original approval of production of responsive records in electronic format. Dr. Greenberg was informed that, since his original FOIA request letter had not specifically sought production in electronic format, Ms. Jackson’s initial approval did not constitute a binding administrative decision. Therefore, Dr. Greenberg did not retain the right to administratively appeal her subsequent reversal.

54. By letter dated April 3, 2008, FBI HQ informed Dr. Greenberg that his requestwas still being processed.

55. By letter dated June 22, 2008, FBI HQ informed Dr. Greenberg that it hadidentified and was releasing to him 493 responsive pages. The letter also noted that FOIA exemptions (b)(2), (b)(6) and (b)(7)(c) had been invoked to justify redactions made to the responsive pages.

56. By letter dated August 20, 2008, Dr. Greenberg appealed the FBI’s response asthe product of an inadequate search. The letter also stated that Dr. Greenberg waschallenging the appropriateness of the redactions made pursuant to FOIA exemptions(b)(2), (b)(6) and (b)(7)(c).

57. By letter dated September 10, 2008, FBI HQ informed Dr. Greenberg that itreceived his appeal on August 27, 2008, and that it had accepted the appeal. The appeal was assigned number 08-2610.

58. By letter dated September 22, 2008, FBI HQ informed Dr. Greenberg that it wasdenying his appeal and affirming the FBI’s search and redactions. The FBI noted that Dr. Greenberg retained the right to seek judicial review by way of 5 U.S.C. § 552(a)(4)(B).

59. Dr. Greenberg has a legal right under the FOIA to obtain responsive records inelectronic format so long as the records are easily reproducible in that format and there is no legal basis for the denial by the FBI of said right.

WHEREFORE, plaintiff Ivan Greenberg prays that this Court:

(1) Orders the Federal Bureau of Investigation to disclose the requested records intheir entireties and make copies promptly available to him in electronic format;

About Me

I am a former college teacher who now devotes his full time to writing and the visual arts. My book, "The Dangers of Dissent: The FBI and Civil Liberties since 1965," was published by Rowman and Littlefield/Lexington Books (October 2010). A second volume, "Surveillance in America: Critical Analysis of the FBI, 1920 to the Present," was published by Lexington Books in June 2012. I live in Silver Spring, MD.